Exhibit 10.2
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as **. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
GLOBAL SUPPLY AND LICENSE AGREEMENT
-----------------------------------
This Global Supply and License Agreement (this "Agreement") is entered
into, effective April 10, 2002 (the "Effective Date"), between ONDEO
Nalco Company, a Delaware corporation with principal executive offices
located at XXXXX Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("Nalco"), Flexible
Solutions International, Inc., a company organized under the laws of
Nevada, with principal executive offices located at 0000 Xxxxxxxxxx,
Xxxxxxxx, X.X., X0X 0X0 ("FSI") and Xx. Xxxxxx X. X'Xxxxx residing at
0000 Xxxxxxxxxx Xxxxxxxx XX X0X 0X0, Tax Identification Number - Not
available. (the "Inventor").
I. SCOPE OF SUPPLY
A. FSI agrees to purchase all its requirements of the product described in
Attachment A from Nalco and subject to the terms herein, Nalco agrees
to sell, or procure that its affiliates will sell, to FSI the product
meeting the specifications in Attachment A (the Product") as ordered in
individual purchase orders issued by FSI.
B. FSI will submit orders for Product to Nalco (i) at least thirty (30)
days in advance of delivery by Nalco to FSI for Product to be exported
by FSI and (ii) at least ten (10) business days in advance of delivery
by Nalco to FSI for Product to be sold by FSI to customers in the
United States. Nalco shall have two (2) business days after receipt
from FSI of such order meeting the requirements set forth in this
Agreement and documents described in Section I.C herein, to communicate
to FSI whether Nalco agrees to accept such order. Nalco may reject an
order from FSI only if: (i) Nalco does not have the capability to
manufacture the Product at its Sugar Land, Texas or Garyville,
Louisiana facilities; (ii) Nalco is unable for any reason to outsource
the manufacture of such Product; or (iii) FSI is otherwise in breach of
any term or condition of this Agreement; it being understood that Nalco
shall have sole discretion in determining whether to make any capital
investments in respect of the manufacture of the Product. FSI agrees
that if Nalco accepts an order for Product, Nalco may manufacture such
Product or have Product manufactured by a third party provided such
Product meets the specifications for the Product as set out in
Attachment A. During the Term, Nalco and FSI will discuss opportunities
to optimize the supply chain including optimal locations for
manufacturing Product closest to the location of the ultimate end-user
of Product.
C. All orders for Product issued by FSI to Nalco during the Term
("Purchase Orders") are subject to the provisions of this Agreement as
if such provisions were fully set forth in
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such Purchase Order. Except as otherwise set forth in this Agreement,
no other terms and conditions, whether in FSI's purchase order or
otherwise presented to Nalco, shall have any application to this
Agreement, or any transactions occurring pursuant hereto, unless this
Agreement shall be specifically amended in writing by the parties. All
Purchase Orders issued by FSI hereunder, shall include (i) reasonably
detailed information, as requested by Nalco in advance to FSI,
regarding FSI and the ultimate consignee of the Product which is
necessary for Nalco to complete its credit analysis relating to
approval of any Purchase Order and (ii) with respect to exports,
documentation reasonably satisfactory to Nalco evidencing that FSI has
obtained insurance backed financing from the EXIM Bank in an amount
equal to 90% of the price of Product sold hereunder. FSI understands
and agrees that as a result of its credit analysis, applying its
standard procedures, Nalco may require FSI to provide additional
security to accompany Purchase Orders including without limitation
letters of credit issued in favor of Nalco from a bank acceptable to
Nalco and/or performance bonds.
II. TERM
This Agreement shall have a term of five (5) years from the Effective
Date (the "Term"), unless sooner terminated as provided herein. Either
party shall have the right to terminate this Agreement at the end of
the Term upon at least six (6) months advance written notice. At the
end of the Term if neither party has delivered notice of its intent to
terminate this Agreement, this Agreement shall renew from year to year
thereafter subject to each party's right to terminate during such
renewal upon 6 months advance written notice or as otherwise provided
herein. The word "Term" as used in this Agreement shall include any
renewal of this Agreement pursuant to this Section II.
III. PRODUCT QUANTITY ESTIMATES AND REPORTING
For non-binding planning purposes only, by the 5th day of each month
during the Term FSI shall provide its estimated purchase volume for
Product for the following three (3) calendar months. Nalco agrees to
provide FSI with reports within 15 days following the end of each month
during the term showing the quantity of Product sold to FSI during the
previous calendar month and the location of such Product.
IV. PRICING, DELIVERY AND PAYMENT
A. FSI will pay Nalco the following price for Product: (i) $**____ per
pound until Nalco has sold FSI one (1) million pounds of Product in any
calendar year and (ii) $**____ per pound for all quantity of Product
sold to FSI in excess of one (1) million pounds in any calendar year.
At any time that sale of Product from Nalco to FSI exceeds 10 million
pounds; 100 million pounds and 400 million pounds in any calendar year,
Nalco and FSI will negotiate discounted pricing for Product sold to FSI
in excess of such quantities.
** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Such negotiations may consider detailed engineering studies. Nalco
agrees to notify FSI in the event its raw material costs or utility
costs relating to production of the Product increase or decrease by an
amount greater than or less than 10%, respectively, and provide FSI
with reasonable documentation to support such cost increase or
decrease, respectively. Nalco and FSI agree that should the cost of raw
materials or the cost of utilities used in the manufacture of the
Product, whether Product is manufactured by or on behalf of Nalco,
increase or decrease by an amount that is greater than or less than 10%
of such raw material or utility cost on the Effective Date or any date
after the Effective Date on which the price of Product increased or
decreased pursuant to this Section IV.A, the price of Product shall be
increased or decreased by the aggregate amount of such increase or
decrease in cost of raw material or cost of utilities, respectively.
Nalco shall provide FSI with reasonable documentation to support any
such price change. Prices exclude, and FSI shall pay, all sales, use,
excise, VAT, GST, export and import taxes, assessments and similar fees
imposed on the sale, transportation, delivery, storage or use of the
Product.
B. Product shall be sold to FSI f.o.b. Nalco's plant. Title in all Product
shall remain with Nalco until Nalco receives payment for such Product.
Risk of loss for sale of Product shall pass to FSI upon delivery to FSI
f.o.b. Nalco's plant. FSI agrees to pay Nalco a warehousing fee as set
forth on Exhibit A for Product remaining at Nalco in excess of fifteen
(15) days beyond the date that FSI receives notice of delivery. FSI
shall make any necessary arrangements for importation of the Product
into any country.
C. FSI shall pay Nalco for all Product sold to FSI thirty (30) days after
invoice date. Payment shall be made in United States Dollars, without
deduction or offset. FSI shall pay interest on past due invoices at an
interest rate equal to the lesser of one and one-half percent per month
or the highest rate permitted by law.
V. PACKAGING OF PRODUCT
Packaging of Products is described in Attachment A and shall be in
conformance with applicable laws and regulations. Nalco shall ensure
that quantities, weights and identification, as stated on packaging
lists, are correct.
VI. TERMINATION
A. Either Nalco or FSI may terminate this Agreement upon thirty (30) days
prior written notice to the other in the event of the occurrence of any
of the following events of default:
(i) Failure of the defaulting party to pay when due any amounts
owing to the non-defaulting party, other than nonpayment of a
disputed amount or obligation to pay to the extent such amount
or obligation is disputed in good faith; or
(ii) Breaches of any term or condition of this Agreement by the
defaulting party;
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(iii) If the defaulting party shall be or become insolvent or if the
normal conduct of business (or such defaulting party's credit)
shall become substantially impaired by such defaulting party's
credit problems;
(iv) If the defaulting party shall call any meeting of creditors or
if a receiver or trustee shall be appointed for it or its
assets; or
(v) If any petition, proceeding or action under any bankruptcy
proceeding shall be filed or instituted by the defaulting
party or against it and, in the event such proceeding is filed
against the defaulting party, such proceeding is not dismissed
within sixty (60) days;
provided that during the above thirty (30) day notice period, the
defaulting party may cure its default under this Section VI.A, and
thereby xxxxx the termination; and provided further, that the party
giving notice of such default in its sole discretion may extend the
period within which the defaulting party may cure its default.
B. In the event of termination as set forth above, the party terminating
this Agreement shall have all rights and remedies available to it at
law or in equity against the defaulting party, subject to and in
accordance with the provisions of Section VII below.
VII. WARRANTY AND REMEDIES
A. Nalco warrants that at the time of sale the Product sold hereunder or
pursuant hereto will be free of any claim of any nature by any third
person and that Nalco will convey clear title thereto at the time of
sale to FSI. Subject to the limitations of Article VII.B, Nalco
warrants that the Product sold to FSI shall conform to specifications
set forth in Attachment A to this Agreement (the "Specifications").
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS ARTICLE VII.A, THE PRODUCT
IS SOLD TO FSI ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND NALCO SPECIFICALLY
DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE.
B. If a Product does not meet Specifications, FSI will provide written
notification and a sample thereof to Nalco. Upon verification that
Product does not meet Specifications, such quantity of Product will be
replaced by Nalco with conforming Product, or Nalco will refund the
purchase price for that quantity of Product, and Nalco will reimburse
FSI for damages for the testing, storage, disposal, material
replacement, reformulating, processing, labor and freight incurred by
FSI due to such defective Product. Nalco's liability for breach of
warranty is limited to replacement with conforming Product at no charge
to FSI. No warranty claim may be made by FSI more than ninety (90) days
after delivery of Product to FSI. Nalco shall not be liable to FSI for
consequential, indirect or incidental damages or damages measured by
lost profits whether a claim is in contract, negligence, strict
liability or other theory of liability, including without limitation,
for non-
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conforming Product or delays in delivery. In any event, Nalco's
liability for any and all claims, damages and causes of action arising
out of the sale, use, storage, delivery or non-delivery of any Product
or any warranty shall be limited to the price (including freight
charges if paid by FSI) paid to Nalco for such Product.
VIII. COMPLIANCE WITH LAWS
Nalco and FSI represent, warrant, certify and covenant to each other
that during the Term each party shall comply with all laws.
IX. CUSTOMS AND TRADE
FSI agrees that (a) Nalco will not be a party to the importation of
Products into any country, (b) the transaction(s) represented by this
Agreement will be consummated prior to export or importation, and (c)
FSI will neither cause nor permit (i) Nalco's name to be shown as
"importer of record" on any customs declaration or (ii) Nalco's name to
be shown on any shippers export declaration or related export
documentation; unless otherwise specifically agreed to in writing by
Nalco. FSI shall indemnify, defend, and hold Nalco harmless from and
against fines and penalties imposed or additional cost of duty or other
cost and expense incurred through FSI's breach of this Agreement or any
laws.
X. PATENT, TRADEMARK AND INTELLECTUAL PROPERTY LICENSE
A. DEFINITIONS
The following terms when used in this Agreement shall have the meaning
defined herein:
1. "Confidential Information" means all facts, documents or other
information relating to the Products, Patents and Technology
including Nalco's and its sublicensee's manufacturing operations,
processes, procedures and other information related thereto.
2. "Patents" shall mean (i) United States or foreign patents and
patent applications now owned or hereafter acquired or licensed
to or by FSI in the Technical Area and rights to file
applications for such patents; (ii) all continuation,
continuation-in-part, divisional, extension, reissue applications
and any United States or foreign equivalent of such applications
described in (i) above; (iii) all patents that issue on the
applications defined in (i) and (ii) above; and including, but
not limited to, (iv) patents, patent applications and foreign
equivalents described in (i), (ii) and (iii) listed on Attachment
B.
3. "Technical Area" shall mean the design, development, manufacture
and sale of products and processes using hydrated lime with a
sterol alcohol flow aid.
4. "Technology" shall mean all unpatented technical information in
the possession of FSI and not publicly available or otherwise
known to Nalco, in the Technical Area, including, but not limited
to; all patent applications; communications to and from
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applicable patent offices; trade secrets; supplier lists;
computer data (including formulations and analysis), computer
software (in source code and object code form) and all related
programming, user and systems documentation; inventions, and
processes (whether or not patentable or reduced to practice);
know-how and formulae; product designs and formulations and
product information and all other intangible assets, properties
and rights whether owned or licensed.
5. "Territory" shall mean anywhere in the world.
6. "Trademarks" shall mean the trademark "WATER$AVR" and such other
tradenames or trademarks listed on Attachment B as the parties
may agree from time to time.
X. XXXXX OF LICENSE
FSI hereby grants to Nalco and its affiliates, and Inventor consents to
such grant, a royalty-free, non-exclusive right, with a right to
sublicense to any person, under the Patents and Technology to make or
have made the Product for sale only to FSI in the Territory. FSI hereby
grants to Nalco and its affiliates a royalty-free, non-exclusive right,
with a right to sublicense to any person, the use of the Trademarks for
the purpose of complying with the terms and conditions of this
Agreement.
C. PATENT, TRADEMARK AND TECHNOLOGY REPRESENTATIONS, WARRANTIES AND
COVENANTS
1. FSI and Inventor represent and warrant that (i) the Patents and
Technology are subsisting and, to the best of FSI's and
Inventor's knowledge, are not invalid or unenforceable, in whole
or in part; (ii) FSI and Inventor have full right, power and
authority to grant all of its right, title and interest in the
Patents and Technology; (iii) Inventor is the sole owner of the
Patents and Trademarks; (iv) FSI has the exclusive right to use
the Patents and Technology all of which are free and clear of any
liens, charges and encumbrances; (v) to the best of FSI's and
Inventor's knowledge, the practice under the Patents, the
practice of the Technology and the use of the Trademarks do not
infringe any rights owned or possessed by any third party; and
(vi) there are no claims, judgments or settlements to be paid by
FSI or Inventor or pending claims or litigation relating to the
Patents, Technology or Trademarks.
2. FSI shall, at its expense, maintain and/or prosecute all Patents
and patent applications and Nalco shall cooperate fully therein
and shall also require its sublicensees to cooperate fully
therein. FSI shall provide Nalco with copies and the complete
specifications and claims for all Patent applications.
3. In the event that an infringement claim is made against Nalco or
any of its sublicensees by reason of Nalco's or such
sublicensee's exercise of its rights pursuant to this Agreement,
Nalco and FSI shall meet to analyze the infringement claim and
avoidance of such claim. If it is necessary, in Nalco's sole
discretion, to obtain an appropriate license from such third
party, FSI and Nalco shall together
6
use their reasonable endeavors to obtain an appropriate license
from such third party. FSI shall have sole responsibility for any
royalties or costs relating to such license.
4. In the event that either party becomes aware of any infringement
of any of the Patents or Trademarks or any unauthorized use or
disclosure of Technology by a third party or of any action by a
third party for a declaration that any Patent is invalid or
unenforceable, it shall promptly notify the other party in
writing, and FSI and Nalco shall promptly consult with one
another regarding action to be taken. FSI will have the first
right to institute a suit for infringement of the Patents,
Trademarks and Technology at its own expense and all recoveries
in such suit shall inure to the benefit of FSI. FSI shall
diligently prosecute any such suit or defense once filed and
Nalco shall fully cooperate with FSI therein at FSI's expense.
If, within 30 days after Nalco becomes aware of a possible
infringement of any Patents or Trademarks or any unauthorized use
or disclosure of Technology by a third party, and FSI has not
instituted any suit related thereto, Nalco shall have the right
to xxx any such third party or otherwise protect the Patents,
Trademarks and Technology, in its own name at FSI's expense, and
all recoveries in such suit shall inure to the benefit of Nalco
and, once such suit is filed or other action taken, FSI shall
fully cooperate with Nalco therein at FSI's expense.
5. FSI shall indemnify and hold Nalco and its affiliates harmless
from and against any and all judgments, losses, expenses, damages
or other costs arising out of any judgements of infringement
relating to any of the Patents. Trademarks or Technology.
6. Nalco shall not use any tradename or trademark of FSI in the
conduct of its business except as authorized pursuant to this
Agreement. FSI shall have no right to use in the conduct of its
business or otherwise any tradename, trademark or logo owned or
used by Nalco, including without limitation the names "Nalco,"
"Ondeo" and "Suez".
7. FSI agrees with and assures Nalco that it shall not ship,
furnish, transmit, or export, directly or indirectly, any Product
to any country or territory to which shipment directly from the
United States is now illegal or hereafter becomes illegal at the
time in question, according to the laws of the United States or
to regulations of any department or agency of the Government of
the United States made according to such laws. Any further
changes in the United States governmental regulations shall be
considered an amendment to this provision.
8. FSI and Inventor agree that during the term of this Agreement,
neither shall enforce any intellectual property right it may own
or control relating to the Patents, Trademarks or Technology or
manufacture, use or sale of Products against Nalco or any
sublicensee of the Patents, Trademarks or Technology from Nalco,
provided, that Nalco shall not be in breach of this Agreement.
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D. TITLE TO INVENTIONS AND IMPROVEMENTS
1. Title to all inventions, whether or not patentable, conceived by,
or conceived and reduced to practice jointly by, employees of
both Nalco and FSI arising from such employees' participation in
and in connection with any development effort in the Technical
Area shall be owned jointly, and will be licensed exclusively to
Nalco, and Nalco shall have the right to sublicense, with no
royalties payable by either party. Following the Term, if such
should occur, FSI and Nalco shall have the right to use any such
inventions or other jointly developed intellectual property with
no royalties payable to either party; provided, that in no event
shall Nalco infringe the Patents or Technology that is the
subject of this Agreement.
2. During the Term, and any extensions thereof, FSI grants to Nalco
a non-exclusive license with the right to grant sublicenses in
any improvements made by FSI relating to the Patents and
Technology for the use or manufacture of Product to FSI;
provided, that in the event of termination of this Agreement for
any reason, this license shall terminate.
E. CONFIDENTIALITY
1. In order to maximize the benefits from this Agreement, it is
anticipated that it will be necessary for Nalco and FSI to
disclose to each other Confidential Information. Confidential
Information shall be given in writing and marked as
"CONFIDENTIAL", or if given orally, summarized promptly in
writing and marked as "CONFIDENTIAL". FSI and Nalco agree to hold
in strictest confidence all Confidential Information obtained
from the other party and shall not use the Confidential
Information for any purpose other than as agreed herein. The
receiving party shall not disclose Confidential Information to
any third party. FSI and Nalco shall limit disclosure of
Confidential Information to those of its officers and employees
who require Confidential Information in connection with carrying
out the rights and obligations hereunder. Upon termination of
this Agreement, FSI and Nalco shall return any Confidential
Information to the other party. The obligations referred to in
this Section X.E shall continue for the Term and any extensions
thereof and for five (5) years thereafter.
2. FSI and Nalco agree not to issue any publicity or press releases
relating to the Confidential Information. FSI shall not issue any
press release or make any public announcements relating to Nalco
or this Agreement without obtaining the prior written consent of
Nalco. In the event a request or demand for disclosure of
Confidential Information is made to either party, pursuant to
which such party may become legally compelled to disclose such
Confidential Information, such party shall provide notice to the
other party of such demand or request no later than five (5) days
after receipt and before the Confidential Information is
disclosed to a third party. FSI and Nalco will cooperate to
minimize any disclosure of Confidential Information.
XI. MISCELLANEOUS
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A. FORCE MAJEURE
1. Delay in performance or non-performance of any obligation
contained herein shall be excused to the extent such failure or
non-performance is caused by force majeure.
2. For purposes of this Agreement, force majeure shall mean any
cause or agency preventing performance of an obligation under the
Agreement which is beyond the reasonable control of FSI or Nalco,
other than non-payment of any amounts required hereunder, as the
case may be, including without limitation, fire, flood, sabotage,
shipwreck, embargo, explosion, strike or other labor trouble,
accident, riot, acts of governmental authority (including,
without limitation, act based on laws or regulations now in
existence as well as those enacted in the future), war, acts of
terror and acts of God.
3. If Nalco or FSI is affected by force majeure the party affected
shall promptly provide notice to the other party, explaining in
detail the full particulars and the expected duration thereof and
shall use its commercially reasonable efforts to remedy the
interruption or delay if it is reasonably capable of being
remedied. In the event of force majeure, FSI shall have the right
to purchase Product from other sources and deliveries or
acceptance of deliveries of Product which have been suspended
will not be required to be made upon the resumption of
performance. In the event a force majeure situation extends for
more than ninety (90) days, this Agreement may be terminated
without any liability by the party not declaring force majeure
upon written notice thereof to the other with respect to the
facilities affected.
B. ACCESS & AUDIT
In order to assess Nalco's: (i) work quality, (ii) conformance with
Specifications, and (iii) compliance with the terms and conditions of
this Agreement, Nalco shall permit FSI access during normal business
hours upon written request, not more frequently than semi-annually, to
access Nalco's Sugar Land, Texas and Garyville, Louisiana facilities
where work is performed relating to the Products under the supervision
of Nalco personnel.
C. INDEMNIFICATION AND INSURANCE
1. Subject to the limitations on damages set forth in Section VII.B,
Nalco agrees to defend, indemnify and hold harmless FSI, its
successors and assigns, and their respective agents, servants,
and employees from and against any and all claims, demands,
damages, actions or causes of action at law or in equity,
asserted by any entity, person or persons for bodily injuries,
death or property damage, caused by Nalco's negligent or willful
acts or omissions.
2. Subject to the limitations on damages set forth in VII.B, FSI
agrees to defend, indemnify and hold harmless Nalco, its
successors and assigns, and their respective agents, servants,
and employees from and against any and all claims, demands,
damages, actions or causes of action at law or in equity,
asserted by any entity,
9
person or persons for bodily injuries, death or property damage,
caused by Buyer's negligent or willful acts or omissions.
3. Nalco and FSI are and will at all times be in full compliance
with, and, subject to the limitations on damages set forth in
Section VII.B, Nalco and FSI will indemnify, defend and hold each
other, their successors and assignees harmless from and against
application of all laws, rules, regulations, statutes, writs,
judgment, decrees or order application to either party or their
business ("Laws"), including without limitation all Laws
concerning protection of the environment, the air, the land or
surface or underground water, or the emission or discharge of
hazardous or toxic materials, substances or waste ("Hazardous
Materials") as such terms are defined in any federal, state or
local laws, rules, regulations, statutes, writs, judgment,
decrees or orders pertaining to the protection of the environment
("Environmental Laws").
4. Nalco shall maintain such policies of insurance (including,
without limitation, employer's liability, comprehensive general
liability product liability and property damage insurance)
consistent with past practices. Upon request, Nalco will provide
FSI with evidence of such insurance.
D. SURVIVAL
Notwithstanding any termination, expiration or completion of
performance hereunder, Sections VII (Warranty and Remedies), VIII
(Compliance with Law), IX (Custom and Trade), X.C (Patent and
Technology Representations, Warranties and Covenants), X.D (Title to
Inventions and Improvements), X.E (Confidentiality), XI.C
(Indemnification and Insurance), XI.F (Governing Law) and XI.P
(Independent Contractor) shall survive.
E. NON-ASSIGNMENT
FSI shall not assign this Agreement or any interest herein without the
written consent of Nalco, and any attempted assignment without such
consent shall be void. Nalco may assign this Agreement or any interest
herein, including its obligations hereunder to its affiliates or third
parties; provided, that if Nalco assigns or subcontracts any of its
rights and/or obligations hereunder to a third party, Nalco shall
remain liable for its obligations hereunder.
F. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois, USA without regard to such state's
conflict of law provisions. Each party hereto consents to the
jurisdiction of any state or federal court located in the counties of
Xxxx or DuPage in the State of Illinois.
G. NOTICES
Notice and other correspondence related to this Agreement should be
directed to the parties by nationally recognized overnight delivery
service, telecopy with receipt confirmed, or personal delivery to the
addresses first above written and if to Nalco to the attention of Xxx
Xxxxxx, Vice President and if to FSI to the attention of Xxxxxx
X'Xxxxx,
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Chief Executive Officer and if to Inventor to Xx. Xxxxxx X. X'Xxxxx
2614 Xxxxxxxxxx, Xxxxxxxx XX X0X0X0. Any change in the above shall be
given by either party to the other and made by delivery as set out
above. Notice shall be deemed received if the sender has reasonable
means of showing receipt thereof.
H. INTEGRATION
Except for any Confidentiality Agreement previously executed between
Nalco and FSI, which remains in effect, this Agreement (including the
attachments hereto and each Purchase Order) constitutes the entire
agreement among Nalco and FSI pertaining to the understandings,
negotiations, and discussions, whether oral or written, of Nalco and
FSI with regard to the Product and there are no warranties,
representations or other agreements between Nalco and FSI in connection
with the Product or subject matter hereof except as specifically set
forth herein. No supplement or modification of this Agreement shall be
binding unless executed in writing by Nalco and FSI.
I. SOLE BENEFIT
The provisions of any agreement resulting herefrom are for the benefit
of the parties hereto and not for any other person.
J. PARTIAL INVALIDITY
Should any provision of this Agreement be found illegal or
unenforceable for any reason, Nalco and FSI shall seek in good faith to
agree to substitute valid provisions which, as closely as possible,
reinstate the commercial balance between them which would have
prevailed had the original term applied. Failing agreement on
substitute provisions within a reasonable time, either Nalco or FSI may
terminate this Agreement by notice in writing to the other.
K. WAIVERS
Waiver of any breach, or failure to enforce any of the terms and
conditions of this Agreement, at any time by any party hereto, shall
not in any way affect, limit or waive a party's right thereafter to
enforce and compel strict compliance with every term and condition
thereof.
L. AUTHORITY
FSI represents and warrants to Nalco that it has full power and
authority to enter into this Agreement and that this Agreement is valid
and legally binding against FSI. Nalco represents and warrants to FSI
that it has full power and authority to enter into this Agreement and
that this Agreement is valid and legally binding against Nalco.
M. DISPUTE RESOLUTION
1. The parties hereto will attempt in good faith to resolve through
negotiation any dispute, claim or controversy arising out of or
relating to this Agreement ("Dispute"). A party to the Dispute
may initiate negotiations by providing written notice to the
other party, setting forth the subject of the Dispute and the
relief requested. The recipient of such notice will respond in
writing within thirty (30) days with a statement of its position
on and recommended solution to the Dispute. If the Dispute is not
resolved by this exchange of
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correspondence, then representatives of each party to the Dispute
with full settlement authority will meet at a mutually agreeable
time and place in order to exchange relevant information and
perspectives, and to attempt to resolve the Dispute.
2. If the Dispute is not resolved by these negotiations within
thirty (30) business days from the date of the parties' meeting
as set forth herein, a party to the Dispute may, at its option,
submit the Dispute to arbitration in accordance with this
Agreement. Any such dispute shall be submitted to the American
Arbitration Association ("AAA") for arbitration in accordance
with the Rules of the AAA. The arbitral award shall be final and
binding on the parties to the arbitration. The arbitral tribunal
shall consist of three (3) neutral arbitrators, one designated by
each of the parties to the Dispute and the third (who shall be
the chairperson of the arbitral tribunal) appointed by the
arbitrators designated by the parties. The arbitration shall take
place in Chicago, Illinois or such other location agreed to by
the parties.
N. ENGLISH
Except as the parties may otherwise agree, this Agreement and data,
notices, shipping invoices, correspondence and other writings
pertaining thereto shall be written in the English language. In the
event of any conflict between this Agreement and any translation
thereof, the English language meaning shall govern.
O. AGREEMENT CONTROLS OVER CONFLICTING, ADDITIONAL OR DIFFERENT TERMS.
To the extent there are any conflicts between the terms and conditions
set forth in (a) this Agreement, (b) any Purchase Order issued by
Purchaser, (c) any correspondence whether written or oral prior to the
Effective Date or (d) oral correspondence or written correspondence
that is not signed by authorized representatives of both Nalco and FSI,
the terms and conditions in this Agreement shall control. Any
additional or different terms are hereby rejected unless assented to in
writing by the parties.
P. INDEPENDENT CONTRACTOR
FSI and Nalco agree that this Agreement does not establish an employer
employee relationship or an agency, partnership or creating any joint
obligations other than those specifically set forth herein. Each of
Nalco and FSI expressly agrees that it is acting solely on its own
behalf and in its own interest and that Nalco and any of Nalco's
subcontractors and their respective employees are independent
contractors and shall not be deemed to be the servants, employees or
agents of FSI, and any activities conducted hereunder shall be excluded
from the provisions of any applicable tax statutes addressing the
taxation of partners or partnerships. Neither party shall have any
authority to represent the other or otherwise negotiate or conclude any
agreement, license or contract on behalf of the other party.
Q. DEFAULT
Each delivery under this Agreement shall be construed as a separate and
independent contract. If FSI defaults under this Agreement, or FSI's
financial condition become unsatisfactory to Nalco, then Nalco, at its
sole discretion, may withhold future deliveries
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of Product until FSI cures the default or improves its financial
condition to Nalco's satisfaction; require payment in advance;
terminate this Agreement and exercise any other remedies available
under applicable law or this Agreement.
R. COUNTERPARTS.
This Agreement may be executed in counterparts.
(Signatures Follow)
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IN WITNESS THEREOF, the parties have executed this Agreement on the
date first written below:
ONDEO NALCO COMPANY
By: ___________________________
Xxxxx Xxxx
Division Vice President - North American Manufacturing
FLEXIBLE SOLUTIONS
INTERNATIONAL, INC.
By: ___________________________
Xxxxxx X'Xxxxx
Chief Executive Officer
XXXXXX X. X'XXXXX
________________________________
Witness: _______________________
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ATTACHMENT A
Initial Product Specifications and Packaging (subject to review based on
subsequent manufactured batches; provided that any changes shall be agreed in
writing)
RAW MATERIALS:
Hydrated Lime (90 % by weight)
NSF 60 or Food Grade
Minimum Ca (OH)2 content of 95%
Minimum % Passing through a 200 mesh screen of 90%
Cetyl Alcohol (5% by weight)
Food Grade or Pharmaceutical Grade
Minimum C-16 content of 90%
Stearyl Alcohol (5% by weight)
Food Grade or Pharmaceutical Grade
Minimum C-18 content of 90%
Packaging:
50 pound Kraft paper / HDPE multi wall bags to be palletized at 40 bags per
pallet (2,000 lbs. per pallet)
Polypropylene Super Sacks to contain 2,000 lbs. each.
Finished Product:
Particle Size Minimum of 80 % pass through a 100 mesh screen using
a Ro-Tap machine
Friability Particles not passing the 100 mesh screen should be
pressed/rolled with a 1" diameter steel roller to
ensure remaining particles are friable.
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ATTACHMENT B
PATENTS AND TRADEMARKS
Patents:
Patent No. 6303133
Trademarks:
WATER$AVR
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